29 May 2012

Scalia in Troy

Justice Scalia of the U.S. Supreme Court was in Troy this past weekend to receive an honorary degree from Rensselaer Polytechnic Institute, an award inevitably protested by some students and faculty, and to participate in an annual colloquy with other honorees. This year's topic was "Honoring Tradition, Responding to a Changing World." As an "originalist" among jurists, Scalia is an interesting person to invite to such a discussion, and I imagine he did not disappoint expectations. RPI's website put up this excerpt from his remarks.

On this occasion, Scalia's understanding of the Constitution is less "originalist" than "strict constructionist." The opposite of strict construction is just as much an "originalist" position as Scalia's, since it was the position of Alexander Hamilton, who was more or less the co-author of the Constitution with the strict-constructionist James Madison. As David J. Bodenhamer writes in his new book The Revolutionary Constitution, Hamilton understood the Constitution as a "grant of power" while Jefferson, reflecting Madison's viewpoint and anticipating Scalia's, saw it as a "restraint on power." Obviously the Constitution is both; it grants power and limits it, the limits being most obvious in the Bill of Rights and subsequent amendments. The common-sense position on Constitutional questions should recognize that legislation is unconstitutional if it violates rights defined in the Constitution itself. Strict constructionism goes further, deeming laws unconstitutional not only if they violate defined rights, but also if the powers assumed in the legislation are not explicitly spelled out in the founding charter. The opposite position, from Hamilton to the present day, is more inferential, more inclined to give legislators the benefit of the doubt so long as they don't violate enshrined rights. That position may seem less intellectually rigorous than strict constructionism but the real difference is in the fundamental presumption about government. Strict constructionists from Madison to Scalia interpret the Constitution to mean "this much and no more" until it's amended, while the other side doesn't take the "no more" part for granted. The strict constructionists never say that the other side can't have its way, but insist that under certain circumstances they can't have their way until they amend the Constitution. Because of the amendment process, Scalia is wrong when he says that the people can dictate that some things may never change. But it's also wrong to say that he intends that some things should never change. The real issue between the rival constructions is when it should be necessary to go to the by-definition radical step of amending the Constitution. The opponents of strict construction don't recognize the necessity as often as their rivals. For whatever reason, the "loose" or "liberal" constructionists assume government to have more inherent power than strict constructionists do. Is that assumption based on the Constitution itself or on more fundamental assumptions about government and its obligations? The same question can be asked of strict constructionists, and especially of those, like Scalia, who sometimes fall back on pre-constitutional notions of natural rights. Ideally we would draw our conclusions depending only on the Constitution itself, but if we disagree on the very meaning of government our readings of the Constitution itself will inevitably differ. If the Constitution itself was meant as a vehicle for reconciling conflicting attitudes toward government in the abstract, it's possible to argue that in that sense, at least, it has failed.


Anonymous said...

This whole notion of power/rights, at a certain level, is very confusing. Who is granting this power and to whom? If the government is the guarantor of our rights, as spelled out in the Constitution. It seems to me the easiest way to look at this is to first stop thinking of the Constitution as anything other than the social contract.

We, the people, in order to enjoy the fruits of modern culture and civilization, do grant you, the government, with the power and authority to guarantee the rights and privileges which we reserve for all American citizens.

Second, we really need to revamp the power of the supreme court. The founders set up a series of checks and balances between branches of government (Legislative, Executive, Judicial). But it seems to me that the people only truly have a check on two branches, since the supreme court are appointed for life and are not directly answerable to the people.

Therefore I suggest that anytime a case is tried by the Supreme Court and a law is struck down as "unconstitutional", the law in question goes to a national public referendum. If it is passed by the public, it would be written up and presented to Congress as an amendment to the Constitution.

It is obvious to anyone that the recent Supreme Court decision redefining "bribery" as "political contribution" and placing no regulation on it as such is a very flawed decision that favors the wealthy over the majority. This cannot be countenanced in a truly democratic society, wherein ALL individuals must have an equal voice if democracy is to have any meaning whatsoever.

Samuel Wilson said...

The Court has come to be thought of as a check on the people or their representatives in legislatures. That stance is justified on the assumption that the people's will at any given moment is but a whim, while the Court expresses unchanging principles. But that grows harder to believe with every generation.

The referendum you propose resembles Teddy Roosevelt's plan circa 1912, except that he showed less deference to the judiciary. In his plan, if the people overruled the Court, it didn't mean that the Constitution was amended, but that the law that had been struck down was constitutional all along, no matter what the Court said. But the best way to redress the imbalance of power between Court and people may be to "pack" rather than "check" the Court. Whenever a new President takes over, let him add a certain number of justices to the Court even if no one retires. That way current public opinion is always represented on the Court and no one is forced out.

Anonymous said...

I have to disagree. Packing the supreme court may seem like a good idea, but at what economic cost to the taxpayer? I'd think a better solution is to simply ban any political party member from being appointed.

A part of my concern is that any given issue may have been considered "constitutional" by the founders, but things having changed as much as they have socially and economically, what do we owe the founders and their vision? They didn't live under the circumstances we currently live under. Far too often recently, the Supreme Court has been used to push one political ideology over another and that should not be. Anyone who is entrusted and empowered to oversee the constitutionality of legislation should do so with a clear head, not a head full of idiotology.

Samuel Wilson said...

Since ideology is the real problem with today's jurists, simply excluding registered partisans won't address the problem, since an ideological jurist will avoid trouble by never registering with a party.

The problem posed by the Framers is the belief that their main purpose in framing the Constitution was to restrain governments from violating rights that are understood as "natural" and thus unchanging -- even though the rights protections were only added as an afterthought and under pressure. While we've grown used (in most cases) to increasing rights since 1789, the possibility of decreasing rights (especially those deemed natural) terrifies people across the ideological spectrum. But we've already abolished one right that had been implicit in the original document -- the right to hold slaves -- for good reason and in spite of historical precedents proving slaveholding as "natural" a right as any. Other "rights" presumed to be natural might not hold up under renewed scrutiny -- and the Framers didn't forbid such scrutiny.